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Section 50 - Applications for review by the Tribunal

Guidelines

Review by the Victorian Civil and Administrative Tribunal

1.1

The Victorian Civil and Administrative Tribunal (VCAT) is an appeal body that can review freedom of information (FOI) decisions.

1.2

VCAT is generally the second avenue for appeal, after the Office of the Victorian Information Commissioner (OVIC).2 For example, if the applicant or the agency or Minister is not happy with OVIC’s review decision, they can apply to VCAT for a review.

1.3

This section of the FOI Guidelines outlines:

  • the kinds of decisions that VCAT can and cannot review;
  • costs involved in a VCAT review;
  • when agencies and Ministers have to notify OVIC of a VCAT review;
  • what kind of powers VCAT has when reviewing a decision under the Act including the kinds of decisions VCAT can make and its public interest override;
  • when a VCAT decision can be appealed.

For more information about:

VCAT’s FOI review role

1.4

Like OVIC, the kind of FOI review that VCAT does is called merits review. This means VCAT considers the facts, law and policy of a decision and decides what  the correct and preferable decision is. VCAT steps into the shoes of the original decision maker and makes its own decision on the application as if it were making the decision for the first time.11

1.5

When reviewing an FOI decision, VCAT will apply the same legal test that the original decision-maker applied.12 For example, if an agency refused access to a document under section 35(1)(b), VCAT will apply the test in section 35(1)(b) to determine if the exemption applies.

1.6

‘Correct and preferable’ means that VCAT must make the correct decision according to law. Where there are a range of possible correct decisions, the decision must also be the preferable one.13 A ‘correct’ decision might be taken to be one rightly made. A ‘preferable’ decision refers to a decision that involves discretion.14

1.7

VCAT is not restricted to the findings, evidence or arguments considered by the original decision- maker.15 This means that in a review, an agency or Minister may raise new grounds of exemption that were not relied upon by the original decision-maker. An applicant or agency can also submit new evidence or make different submissions.

1.8

During a review, VCAT will only look at the FOI decision that was made. VCAT:

  • does not express views on a particular government policy being correct or otherwise;
  • does not determine whether an agency has gone beyond its statutory powers or unlawfully used information obtained (those are legal questions for the courts);16
  • will not reopen disputes that have already finalised in the courts.
1.9

If an agency is alleged to have acted poorly in performing functions under the Act, VCAT does not carry out investigations. This is more properly dealt with by OVIC under section 61O.17

1.10

When reviewing a decision under the Act, VCAT has, in addition to any of its other powers, the same powers as an agency or a Minister. This includes the power to decide that access should be granted to an exempt document where it is of the opinion that the public interest requires that access to the document should be granted.18

When conducting an FOI review, VCAT operates under the:

Decisions that VCAT review

1.11

This part outlines when certain parties can apply to VCAT for a review. This includes, applicants, agencies or Ministers, and third parties.

When can an applicant apply to VCAT?

1.12

Generally, an applicant must apply to OVIC for a review before applying to VCAT. However, there are some instances where an applicant may apply directly to VCAT without first going through OVIC.

1.13

OVIC’s review process can be less formal than VCAT’s, as OVIC tries to informally resolve matters where it is possible to do so. This helps to resolve matters without needing a formal decision, which can save time.

For more information on OVIC reviews, see Division 1 of Part VI.

Where there is a decision to refuse or defer access to a document

1.14

An applicant must apply to OVIC for review first where an agency or Minister makes an FOI decision on the request which refuses access to part or all of the requested documents. If OVIC makes a formal review decision, the applicant can apply to VCAT for a review where a Commissioner:

  • makes a review decision which refuses or defers access to a document;31
  • does not accept, or dismisses, the review;32 or
  • does not complete the review within the required time (30 days or longer if agreed) and is deemed to have refused access to the document. 33
1.15

An applicant may apply directly to VCAT without first applying to OVIC where:

  • the agency or Minister has not made a decision within the required time, and the agency or Minister is deemed to have refused the request (this is called a deemed refusal);35
  • the agency or Minister decides to refuse access to a document under section 29A (documents affecting national security, defence or international relations).36 OVIC cannot review these kinds of decisions.37 If a certificate has been issued under section 29A(2), VCAT cannot review the decision to grant the certificate. Instead, VCAT will consider whether reasonable grounds exist for the claim that the document is exempt under 29A.38
1.16

An applicant cannot apply to VCAT on a deemed refusal if the agency or Minister has asked the applicant to pay access charges but the applicant has not paid a deposit (if required) or the actual charges.42

Where there is a decision to refuse to amend a document

1.17

Part V outlines the process for requesting an amendment to a document containing the individual’s personal information.

1.18

An applicant may apply to VCAT to review the Information Commissioner’s, agency’s, or Minister’s decision to not amend a document containing the individual’s personal information.45

1.19

If the agency or Minister has not made a decision within 30 days of receiving a valid amendment request, the agency or Minister is deemed to have refused to amend the document. The applicant may apply to VCAT to review this deemed refusal.46

For more information on making an amendment request, see section 39 – Person may request amendment of record.

Where there is a decision to not specify a document as required under Part II

1.20

Sections 8 and 11 require agencies to make certain documents available for inspection or purchase and to publish a statement which outlines certain kinds of documents. Under section 12(1), a person may serve a notice on a principal officer of an agency which states the person’s belief that a statement prepared under sections 8(2)(a), 8(2)(b), 11(2)(a) or 11(2)(b) is missing one or more documents.

1.21

If the agency decides not to specify the document, the person who served the notice on the agency may apply to VCAT to review that decision.51

1.22

The agency has 21 days from when it received the notice to decide whether to specify the document in the next statement.52 If the agency has not made a decision on the notice within 21 days, the agency is deemed to have refused to specify the document in the notice.53 If this happens, the person who served the notice may apply to VCAT to review the deemed refusal.54

Where there is a decision to apply access charges

1.23

An agency or Minister can ask the applicant to pay access charges under section 22. If the applicant is not satisfied with the amount of access charges they have been asked to pay, the applicant may apply to VCAT to review the amount being charged. They may apply to VCAT even if they have previously paid a deposit or the actual access charges.

1.24

However, before an applicant can apply to VCAT to review the access charges amount, they must apply to OVIC first. The Information Commissioner must certify that the matter is one of sufficient importance for VCAT to consider before an applicant can apply to VCAT.59

1.25

An applicant cannot apply to VCAT on a deemed refusal of an agency or Minister where the applicant has been asked to pay access charges but the applicant has not paid the requested deposit or the actual charges.60

1.26

In reviewing an access charges decision, VCAT may order the agency or Minister to waive or reduce the access charges.61 However, VCAT cannot make an order of this kind if it agrees with the amount of access charges imposed by the agency.62

Considering whether the matter is of ‘sufficient importance’

1.27

The Act does not set out what matters to consider when deciding if the matter is of sufficient importance for VCAT to consider. However, the following matters are generally considered relevant:

  • A real or significant argument that there is an error in the decision to either impose the access charges or to impose the amount of access charges to be paid:
    • Whether there has been an error in calculating the access charges (for example, the agency incorrectly applied items in the Regulations resulting in substantially higher access charges than permitted).
    • Whether access charges should be waived because of financial hardship where the requested documents relate to the personal affairs of the applicant.
    • Whether access charges for search time have been imposed where the applicant seeks access to a document containing their own personal affairs information.
    • Whether an applicant has been charged for a search that was previously completed by an agency during an earlier FOI request.
    • Whether access charges for search time have been imposed where the applicant’s intended use of the document is of general public interest or benefit.
    • Whether access charges have been imposed for a routine request.
  • A matter of public or general importance in the context of the Act that VCAT should determine includes:
    • Whether the access charges have been calculated in a manner that furthers the object of the Act – to facilitate and promote the disclosure of information at the lowest reasonable cost.
    • Whether there has been a change in the way an agency stores information resulting in changes to how access charges are calculated.
    • Whether there is a rare, unconventional, or new method of storing information that agencies use to retrieve or make copies of documents which increases access charges.
    • Whether the matter should otherwise be certified for VCAT to review in the interests of fairness and justice.
    • Whether the agency has, at the request of the applicant, discussed practicable alternatives for altering the request or reducing the anticipated charge.
  • The significance of the error in calculating the access charges, that resulted in substantially higher access charges than permitted:
    • The circumstances of the request and the access charges decision. This may include factors such as the type of applicant and the documents requested, the applicant’s proposed use of the documents and the agency’s decision on the request, including the type or number of documents proposed to be released.

How OVIC approaches a request for an access charges certificate

Informal resolution

1.28

Where possible, OVIC will try to resolve access charges matters informally. OVIC may ask for more information from an agency or Minister about its reasons for imposing access charges and discuss this with the applicant.

1.29

A Commissioner may also form a preliminary view on whether the matter may be of sufficient importance for VCAT to consider:

  • Where the preliminary view is that the Commissioner will likely decline to certify the matter, OVIC will tell the applicant and provide them with an opportunity to respond. Alternatively, the applicant may decide to withdraw their request for an access charges certificate.
  • Where the Commissioner’s preliminary view is that they will likely certify the matter, OVIC will provide the agency or Minister with the Commissioner’s reasons and an opportunity to respond. The agency or Minister may decide to reconsider the access charges decision. This may result in an agency or Minister revising the amount of access charges or providing a full or partial refund.

Formal determination

1.30

If OVIC is satisfied the matter is of sufficient importance for VCAT to consider, OVIC will issue a certificate which permits the applicant to apply to VCAT for review.

1.31

If OVIC is not satisfied the matter is one of sufficient importance for VCAT to consider, the applicant cannot apply to VCAT for review of the access charges amount.

1.32

In these circumstances, the applicant may consider taking the following steps:

  • pay the access charges that have been imposed by the agency to release the documents;
  • narrow or re-scope the request to reduce the number of documents, which may result in a reduction in the access charges amount;
  • withdraw the request and make a new amended or narrower request; or
  • do not pay the access charges and no further action will be taken by the agency or Minister.

When can an agency or Minister apply to VCAT?

1.33

If a Commissioner makes a decision under section 49P on review and the agency or Minister is not satisfied with the decision, the agency or Minister may apply to VCAT for review.64

When can a third party apply to VCAT?

1.34

Third parties may apply to VCAT to review a decision to release their information under section 33, 34 or 35 provided the third party did not consent to the disclosure of their information.69 If they consented to the disclosure, they cannot apply for a review.

1.35

VCAT can review a decision:

  • to disclose a document containing a third party’s personal affairs information (as referred to in section 33(3)) where a person (or, in the case of a deceased person, that person’s next of kin) is the subject of information in that document and they did not consent to the disclosure;70
  • to disclose a document containing a business, commercial or financial undertaking’s trade secrets or business affairs (as referred to in section 34) where the undertaking did not consent to the disclosure;71
  • to disclose a document containing information communicated in confidence (as referred to in section 35(1)) where the person (or, in the case of a deceased person, that person’s next of kin) did not consent to the disclosure.72

Decisions that VCAT cannot review

1.36

There are some decisions VCAT cannot review.

1.37

VCAT cannot review:

  • a decision to disclose a third party’s information for the purpose of sections 33, 34 or 35 if the third party consented to the disclosure;82
  • a fresh decision made under section 49L or 49M if the applicant agrees with the decision (or the applicant is taken to agree with the fresh decision because they have not advised OVIC within 28 days of being notified of the decision whether they agree with it or not);83
  • the decision was made by the Information Commissioner under section 49N;84
  • a decision to refuse to waive or reduce the application fee (OVIC can review this);85
  • a decision to give a certificate under section 61ZA(2), which certifies that information or a document is, or would be if it existed, an exempt document under section 28. VCAT cannot review the decision to issue the certificate, but VCAT can review whether a document has been properly classified as an exempt document under section 28;86
  • a decision to give a certificate under section 29A(2), which certifies that a document is, or would be if it existed, exempt under section 29A(1), 29A(1A), or 29A(1B). VCAT cannot review the decision to give a certificate, but VCAT can determine whether there are reasonable grounds to claim that the document is exempt under section 29A.87
1.38

VCAT may refuse to review an agency or Minister’s decision to refuse access to a document or information if VCAT is satisfied that it has previously reviewed the agency or Minister’s decision to refuse access to the same document or the same information.88

1.39

An applicant cannot use section 50 to ask VCAT to consider disciplinary action against an agency or Minister under section 61.90

Where a certificate has been issued under section 61ZA(2) or 29A(2)

1.40

For documents claimed to be exempt under section 28 (Cabinet documents) or section 29A (documents affecting national security, defence or international relations), the agency or Minister may certify that the document is (or would be if it existed) of the kind described in the exemption.

1.41

These kinds of certificates are called ‘conclusive certificates’. They claim that the document is or, if it existed, would be an exempt document.

1.42

OVIC cannot conduct a review, handle a complaint or conduct an investigation in relation to a conclusive certificate.94 Similarly, OVIC cannot question whether a document is of a kind falling within the categories over which a conclusive certificate can be issued.

1.43

While VCAT cannot review the decision to issue a certificate, VCAT can determine on review:

  • for certificates under section 61ZA(2) (Cabinet documents), whether a document has been properly classified as an exempt document within the meaning of section 28.95
  • for certificates under section 29A(2) (documents affecting national security, defence or international relations), the question as to whether reasonable grounds exist for the claim that the document is an exempt document under section 29A.96

Deciding whether reasonable grounds exist

1.44

Deciding whether reasonable grounds exist for the claim that the document is exempt under section 29A is objective and requires consideration of competing facets of the public interest.99

VCAT process for deciding whether reasonable grounds exist for section 29A

1.45

VCAT’s procedures in relation to determining the question whether reasonable grounds exist for the claim in a section 29A certificate are set out in Schedule 1 Part 8 of the VCAT Act (clauses 29B, 29C and 29D).

1.46

VCAT must hold in private any part of the proceeding during which evidence or information is given or any documents are produced by:

  • an agency or an officer of an agency; or
  • a Department Head or a member of staff of a Department Head; or
  • the Chief Commissioner of Police or a member of Victoria Police personnel.105
1.47

VCAT must also hold the proceeding in private where a submission is made to it by or on behalf of an agency, Department Head or the Chief Commissioner of Police in relation to the claim that the document is an exempt document.106

1.48

For any other part of the proceeding, VCAT must hold the hearing in public.107 This may be subject to VCAT’s other powers to hold the hearing in private. For example, under section 17 of the Open Courts Act 2013 (Vic), VCAT may make a suppression order to prohibit or restrict the disclosure by publication or otherwise of:

  • a report of the whole or any part of a proceeding;
  • any information derived from a proceeding.108

How much does a VCAT review cost?

1.49

There are fees associated with a VCAT review (such as an application fee in some instances, hearing fees in some instances and additional fees after VCAT makes an order).

1.50

If an applicant is facing financial hardship, they may be eligible for fee relief.

1.51

However, there are no application fees for FOI matters where:

  • the agency has not made a decision on time (deemed refusal); or
  • the document relates to the applicant’s own personal affairs.113
1.52

For matters where no application fee applies, there is also no hearing fee (normally, there are daily hearing fees).114

1.53

The default position is that each party is to meet its own costs.115 However, in some instances, VCAT may order one party to pay the other party’s costs. This might be where:

  • one party conducted the proceedings in a way that unnecessarily disadvantaged another party;
  • a party was responsible for unreasonably prolonging the time taken to complete the proceeding;
  • the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law;
  • the nature and complexity of the proceeding; and
  • any other matter the Tribunal considers relevant.116

Answer a few quick questions on VCAT’s website to get a better understanding of the fees that might apply to your matter.

Agencies and Ministers must notify OVIC of a VCAT review

1.54

An agency or Minister must tell OVIC when it or someone else applies to VCAT for a review of the agency or Minister’s FOI decision or decision to require the applicant to pay access charges.

1.55

As soon as practicable, the relevant agency or Minister must notify OVIC if:

  • the agency or Minister applies to VCAT to review OVIC’s review decision made under section 49P;119 or
  • an application for review has been made to VCAT by the applicant about:
    • OVIC’s review decision made under section 49P;
    • a review of an agency or Minister’s decision to refuse access to a document where OVIC decides to not accept or dismisses the review;
    • the amount of access charges to be paid, where OVIC has certified the matter.120

VCAT’s FOI review powers

What kind of decision can VCAT make on review?

1.56

If a VCAT review goes to a hearing, VCAT has the same powers as an agency or Minister regarding a request.127

1.57

VCAT may make an order to:

  • affirm the decision under review (this means VCAT upholds the decision being reviewed as the correct and preferable decision and the decision does not change);128
  • vary the decision under review (this means VCAT changes part of, but not the entire, decision);129
  • set aside the decision under review and make another decision in substitution for it (this means VCAT replaces the original decision with a new decision);130 or
  • set aside the decision under review and send the matter back to the decision-maker to reconsider in line with any VCAT directions or recommendations.131
1.58

VCAT will provide a written decision with reasons for its decision.132

For more information on VCAT decisions and orders, visit VCAT’s website (decisions and orders). VCAT publishes decisions on the Australasian Legal Information Institute (AustLII) website. Read VCAT decisions here.

The public interest override

1.59

In addition to having the same powers as an agency or Minister during an FOI review, VCAT also has the power to grant access to an exempt document.144

1.60

VCAT may decide that access should be granted where VCAT is of the opinion that the public interest requires that access to the document should be granted under the Act.145 This is referred to as the ‘public interest override.’

1.61

VCAT cannot exercise the public interest override in relation to:

1.62

VCAT can exercise the public interest override in relation to:

  • documents that are exempt under sections 29, 30,147 31, 32,148 34,149 35, 36,150 37, 38,151 and 38A;152 and
  • a decision under section 25A(5).153

1.63

The agency or Minister must show that disclosure under the Act would be contrary to the public interest.154

What is the public interest?

1.64

Public interest refers to matters such as standards of human conduct and the functioning of government and government instrumentalities that are accepted and acknowledged as being for the good order of society and for the wellbeing of its members.161

1.65

The interest is the interest of the public, not the interest of an individual or individuals.162

1.66

However, there may be a public interest in righting injustice done to an individual.163

1.67

The Act does not define or limit what may be relevant to the public interest.165 The expression ‘public interest’:

… classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only ‘in so far as the subject matter and the scope and purpose of the statutory enactments may enable … given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view.166

Using the public interest override

1.68

VCAT may exercise the public interest override if:

  • VCAT is of the view that the document is exempt (if it is not exempt, the document should be released);176
  • there is sufficient evidence to support an opinion that the public interest requires that access should be granted to the exempt document; and
  • VCAT actually forms the opinion that the public interest requires that access should be granted (this is an evaluation that VCAT does based on the facts).177
1.69

Whether the public interest requires disclosure is a question of fact in each case.

1.70

In deciding whether to use the public interest override, the public interest must require release of the document (it is not enough that it is in the public interest to release the document).178 The public interest must be so strong that it overrides the factors that made the document exempt in the first place.179 The strength of the public interest depends on the nature and strength of the factors that made the document exempt.180

1.71

Release must be in the public interest, not just ‘of public interest’.181

1.72

Factors in favour of establishing the public interest:

  • the documents reveal some illegality, impropriety, sharp practice, or wrongdoing by government;183
  • holding government to account for its actions and enabling the public to have enough information consider and debate the issues at hand.
1.73

The need to ‘clear the air’ or to have “transparency in government” may not be sufficient.184

The public interest override and exemptions with public interest tests

1.74

Some exemptions in Part IV have a public interest test. To find a document is exempt under those exemptions means it has been decided that it would be contrary to the public interest to release the document (or otherwise depending on the wording of the public interest test).

1.75

In these scenarios, considering whether the public interest requires disclosure of the document may involve considering a wider range of public interests than what may be considered under the specific exemption.188

1.76

Because of the nature of the public interest in preserving confidentiality of documents that are exempt under section 32 or section 38, there must be public interest factors ‘of a high order’ requiring disclosure for the override to apply.189

What if a party does not agree with a VCAT decision?

1.77

A party to a VCAT review may appeal a VCAT decision on a question of law only (if the person believes VCAT made a mistake in the way it applied the law).193 There are time limits and certain permissions a person must seek before they may apply for an appeal.

For more information on how to appeal a VCAT decision (including who to apply to, time limits, fees, and legal advice), visit VCAT’s webpage ‘Appeal a VCAT decision’.

1.78

The Supreme Court can hear appeals from VCAT and conduct judicial reviews of administrative decisions.194 Relief may also be available from the Supreme Court via originating motion for judicial review under order 56 of the Supreme Court (General Civil Procedure) Rules 2015.

1.79

See also, section 63BA which relates to applications to the Supreme Court for determining whether the Information Commissioner or the Public Access Deputy Commissioner has jurisdiction to serve a notice to produce or attend.

More information

For more information on:

  1. The FOI Guidelines refers to ‘OVIC’ to mean the Information Commissioner and the Public Access Deputy Commissioner and OVIC staff who assist in the conduct of reviews under the Act.
  2. The FOI Guidelines refers to ‘OVIC’ to mean the Information Commissioner and the Public Access Deputy Commissioner and OVIC staff who assist in the conduct of reviews under the Act.
  3. Encyclopaedic Australian Legal Dictionary, ‘merits review.’
  4. BFK v Victims of Crime Assistance Tribunal [2017] VSC 736 [21].
  5. Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577.
  6. Shi v Migration Agents Registration Authority (2008) 235 CLR 286 [147] per Kiefel J (with whom Crennan J agreed).
  7. Osland v Department of Justice (2008) 234 CLR 275; Towie v Medical Practitioners Board (Vic) [2004] VCAT 2545 [20].
  8. Roy Morgan Research Centre Pty Ltd v State Revenue Office (unreported, VCAT, Coghlan DP, 17 June 1999).
  9. Roy Morgan Research Centre Pty Ltd v State Revenue Office (unreported, VCAT, Coghlan DP, 17 June 1999).
  10. Freedom of Information Act 1982 (Vic), section 50(4).
  11. Encyclopaedic Australian Legal Dictionary, ‘merits review.’
  12. BFK v Victims of Crime Assistance Tribunal [2017] VSC 736 [21].
  13. Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577.
  14. Shi v Migration Agents Registration Authority (2008) 235 CLR 286 [147] per Kiefel J (with whom Crennan J agreed).
  15. Osland v Department of Justice (2008) 234 CLR 275; Towie v Medical Practitioners Board (Vic) [2004] VCAT 2545 [20].
  16. Roy Morgan Research Centre Pty Ltd v State Revenue Office (unreported, VCAT, Coghlan DP, 17 June 1999).
  17. Roy Morgan Research Centre Pty Ltd v State Revenue Office (unreported, VCAT, Coghlan DP, 17 June 1999).
  18. Freedom of Information Act 1982 (Vic), section 50(4).
  19. Freedom of Information Act 1982 (Vic), sections 50(1)(a) and 50(1)(b).
  20. Freedom of Information Act 1982 (Vic), section 50(1)(d).
  21. Freedom of Information Act 1982 (Vic), section 49J. See section 49J(3) for information on timeframes and OVIC’s review.
  22. See section 52 for more information about how long an applicant has to apply for review at VCAT.
  23. Freedom of Information Act 1982 (Vic), sections 50(1)(ea) and 53.
  24. Freedom of Information Act 1982 (Vic), section 50(1)(e).
  25. Freedom of Information Act 1982 (Vic), section 49A(4).
  26. Freedom of Information Act 1982 (Vic), section 50(5A).
  27. See section 21 for more information on how long an agency or Minister has to make a decision on a request.
  28. Freedom of Information Act 1982 (Vic), section 53.
  29. See section 52 for more information about how long an applicant has to apply for review at VCAT.
  30. Chopra v Victorian Institute of Teaching (Review and Regulation) [2023] VCAT 341.
  31. Freedom of Information Act 1982 (Vic), sections 50(1)(a) and 50(1)(b).
  32. Freedom of Information Act 1982 (Vic), section 50(1)(d).
  33. Freedom of Information Act 1982 (Vic), section 49J. See section 49J(3) for information on timeframes and OVIC’s review.
  34. See section 52 for more information about how long an applicant has to apply for review at VCAT.
  35. Freedom of Information Act 1982 (Vic), sections 50(1)(ea) and 53.
  36. Freedom of Information Act 1982 (Vic), section 50(1)(e).
  37. Freedom of Information Act 1982 (Vic), section 49A(4).
  38. Freedom of Information Act 1982 (Vic), section 50(5A).
  39. See section 21 for more information on how long an agency or Minister has to make a decision on a request.
  40. Freedom of Information Act 1982 (Vic), section 53.
  41. See section 52 for more information about how long an applicant has to apply for review at VCAT.
  42. Chopra v Victorian Institute of Teaching (Review and Regulation) [2023] VCAT 341.
  43. Freedom of Information Act 1982 (Vic), section 50(3B).
  44. Freedom of Information Act 1982 (Vic), sections 50(1)(ea) and 53.
  45. Freedom of Information Act 1982 (Vic), section 50(3B).
  46. Freedom of Information Act 1982 (Vic), sections 50(1)(ea) and 53.
  47. Freedom of Information Act 1982 (Vic), section 50(2).
  48. Freedom of Information Act 1982 (Vic), section 12(2)(a).
  49. Freedom of Information Act 1982 (Vic), section 53(2).
  50. Freedom of Information Act 1982 (Vic), section 50(1)(ea).
  51. Freedom of Information Act 1982 (Vic), section 50(2).
  52. Freedom of Information Act 1982 (Vic), section 12(2)(a).
  53. Freedom of Information Act 1982 (Vic), section 53(2).
  54. Freedom of Information Act 1982 (Vic), section 50(1)(ea).
  55. Freedom of Information Act 1982 (Vic), section 50(1)(g).
  56. hopra v Victorian Institute of Teaching (Review and Regulation) [2023] VCAT 341.
  57. Freedom of Information Act 1982 (Vic), section 59.
  58. Freedom of Information Act 1982 (Vic), section 59(2).
  59. Freedom of Information Act 1982 (Vic), section 50(1)(g).
  60. hopra v Victorian Institute of Teaching (Review and Regulation) [2023] VCAT 341.
  61. Freedom of Information Act 1982 (Vic), section 59.
  62. Freedom of Information Act 1982 (Vic), section 59(2).
  63. Freedom of Information Act 1982 (Vic), sections 50(3D).
  64. Freedom of Information Act 1982 (Vic), sections 50(3D).
  65. Freedom of Information Act 1982 (Vic), sections 50(3), 50(3A), 50(3AB) and 50(3AC).
  66. Freedom of Information Act 1982 (Vic), sections 50(3) and 50(3AC).
  67. Freedom of Information Act 1982 (Vic), sections 50(3A) and 50(3AC).
  68. Freedom of Information Act 1982 (Vic), section 50(3AB).
  69. Freedom of Information Act 1982 (Vic), sections 50(3), 50(3A), 50(3AB) and 50(3AC).
  70. Freedom of Information Act 1982 (Vic), sections 50(3) and 50(3AC).
  71. Freedom of Information Act 1982 (Vic), sections 50(3A) and 50(3AC).
  72. Freedom of Information Act 1982 (Vic), section 50(3AB).
  73. Freedom of Information Act 1982 (Vic), section 50(3AB).
  74. Freedom of Information Act 1982 (Vic), sections 49MA(1), 49L(7), 49M(7), 50(3G)(a).
  75. Freedom of Information Act 1982 (Vic), sections 49N, 50(3G)(b).
  76. Gordon v Mornington Peninsula Shire Council (2005) 23 VAR 394; [2005] VCAT 1710 at [13]; McKechnie v Department of Justice and Community Safety [2019] VCAT 432. Freedom of Information Act 1982 (Vic), section 49A(1)(c).
  77. Freedom of Information Act 1982 (Vic), section 50(5).
  78. Freedom of Information Act 1982 (Vic), section 50(5A).
  79. Freedom of Information Act 1982 (Vic), section 50(6).
  80. Parker v Court Services Victoria (Review and Regulation) [2022] VCAT 431 (21 April 2022).
  81. Roberts v Southern Rural Water (unreported, VCAT, Preuss SM, 20 April 2000).
  82. Freedom of Information Act 1982 (Vic), section 50(3AB).
  83. Freedom of Information Act 1982 (Vic), sections 49MA(1), 49L(7), 49M(7), 50(3G)(a).
  84. Freedom of Information Act 1982 (Vic), sections 49N, 50(3G)(b).
  85. Gordon v Mornington Peninsula Shire Council (2005) 23 VAR 394; [2005] VCAT 1710 at [13]; McKechnie v Department of Justice and Community Safety [2019] VCAT 432. Freedom of Information Act 1982 (Vic), section 49A(1)(c).
  86. Freedom of Information Act 1982 (Vic), section 50(5).
  87. Freedom of Information Act 1982 (Vic), section 50(5A).
  88. Freedom of Information Act 1982 (Vic), section 50(6).
  89. Parker v Court Services Victoria (Review and Regulation) [2022] VCAT 431 (21 April 2022).
  90. Roberts v Southern Rural Water (unreported, VCAT, Preuss SM, 20 April 2000).
  91. Freedom of Information Act 1982 (Vic), section 29A(3).
  92. Freedom of Information Act 1982 (Vic), section 50(5).
  93. Freedom of Information Act 1982 (Vic), section 50(5A).
  94. Freedom of Information Act 1982 (Vic), section 29A(3).
  95. Freedom of Information Act 1982 (Vic), section 50(5).
  96. Freedom of Information Act 1982 (Vic), section 50(5A).
  97. McKinnon v Secretary, Department of Treasury.
  98. Willner v City of Melbourne (Review and Regulation) [2015] VCAT 1594.
  99. McKinnon v Secretary, Department of Treasury.
  100. Willner v City of Melbourne (Review and Regulation) [2015] VCAT 1594.
  101. Victorian Civil and Administrative Tribunal Act 1998 (Vic), Schedule 1, clause 29D(1)(a)(i)-(iii).  
  102. Victorian Civil and Administrative Tribunal Act 1998 (Vic), Schedule 1, clause 29D(1)(b).
  103. Victorian Civil and Administrative Tribunal Act 1998 (Vic), Schedule 1, clause 29D.
  104. Open Courts Act 2013 (Vic), section 17.
  105. Victorian Civil and Administrative Tribunal Act 1998 (Vic), Schedule 1, clause 29D(1)(a)(i)-(iii).  
  106. Victorian Civil and Administrative Tribunal Act 1998 (Vic), Schedule 1, clause 29D(1)(b).
  107. Victorian Civil and Administrative Tribunal Act 1998 (Vic), Schedule 1, clause 29D.
  108. Open Courts Act 2013 (Vic), section 17.
  109. Victorian Civil and Administrative Tribunal, Fees at VCAT, viewed online 1 September 2023 (https://www.vcat.vic.gov.au/fees).
  110. Victorian Civil and Administrative Tribunal, Fees at VCAT, viewed online 1 September 2023 (https://www.vcat.vic.gov.au/fees).
  111. Victorian Civil and Administrative Tribunal Act 1998 (Vic), section 109(1).
  112. See sections 109(3)(a)-(e) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).
  113. Victorian Civil and Administrative Tribunal, Fees at VCAT, viewed online 1 September 2023 (https://www.vcat.vic.gov.au/fees).
  114. Victorian Civil and Administrative Tribunal, Fees at VCAT, viewed online 1 September 2023 (https://www.vcat.vic.gov.au/fees).
  115. Victorian Civil and Administrative Tribunal Act 1998 (Vic), section 109(1).
  116. See sections 109(3)(a)-(e) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).
  117. Freedom of Information Act 1982 (Vic), section 50(3F).
  118. Freedom of Information Act 1982 (Vic), section 50(3FA).
  119. Freedom of Information Act 1982 (Vic), section 50(3F).
  120. Freedom of Information Act 1982 (Vic), section 50(3FA).
  121. Freedom of Information Act 1982 (Vic), section 50(4).
  122. Victorian Civil and Administrative Tribunal Act 1998 (Vic), section 51(2)(a).
  123. Victorian Civil and Administrative Tribunal Act 1998 (Vic), section 51(2)(b).
  124. Victorian Civil and Administrative Tribunal Act 1998 (Vic), section 51(2)(c).
  125. Victorian Civil and Administrative Tribunal Act 1998 (Vic), section 51(2)(d).
  126. Victorian Civil and Administrative Tribunal Act 1998 (Vic), sections 116 and 117.
  127. Freedom of Information Act 1982 (Vic), section 50(4).
  128. Victorian Civil and Administrative Tribunal Act 1998 (Vic), section 51(2)(a).
  129. Victorian Civil and Administrative Tribunal Act 1998 (Vic), section 51(2)(b).
  130. Victorian Civil and Administrative Tribunal Act 1998 (Vic), section 51(2)(c).
  131. Victorian Civil and Administrative Tribunal Act 1998 (Vic), section 51(2)(d).
  132. Victorian Civil and Administrative Tribunal Act 1998 (Vic), sections 116 and 117.
  133. Freedom of Information Act 1982 (Vic), section 50(4).
  134. Freedom of Information Act 1982 (Vic), section 50(4).
  135. Wright v State Electricity Commission [No 1] (unreported, VCAT, Mega SM, 29 July 1998).
  136. See Department of Premier & Cabinet v Hulls [1999] 3 VR 331.
  137. See Osland v Department of Justice (2010) 241 CLR 320; 84 ALJR 528; [2010] HCA 24.
  138. See Marple v Department of Agriculture (1995) 9 VAR 29; Thwaites v Department of Health and Community Services (unreported, AAT of Vic, Nedovic PM, 22 August 1994).
  139. See Department of Premier & Cabinet v Hulls [1999] 3 VR 331.
  140. See David Syme & Co Ltd v Victorian Casino & Gaming Authority (1995) 8 VAR 212; Department of Premier & Cabinet v Hulls [1999] 3 VR 331.
  141. Osland v Department of Justice (2008) 234 CLR 275; 82 ALJR 1288; [2008] HCA 37, 287-288 (CLR) (Gleeson CJ, Gummow, Heydon and Keifel JJ).
  142. Knight v Corrections Victoria [2010] VSC 338 [58].
  143. Department of Premier & Cabinet v Hulls [1999] VSCA 117, Coulson v Department of Premier and Cabinet [2018] VCAT 229.
  144. Freedom of Information Act 1982 (Vic), section 50(4).
  145. Freedom of Information Act 1982 (Vic), section 50(4).
  146. Wright v State Electricity Commission [No 1] (unreported, VCAT, Mega SM, 29 July 1998).
  147. See Department of Premier & Cabinet v Hulls [1999] 3 VR 331.
  148. See Osland v Department of Justice (2010) 241 CLR 320; 84 ALJR 528; [2010] HCA 24.
  149. See Marple v Department of Agriculture (1995) 9 VAR 29; Thwaites v Department of Health and Community Services (unreported, AAT of Vic, Nedovic PM, 22 August 1994).
  150. See Department of Premier & Cabinet v Hulls [1999] 3 VR 331.
  151. See David Syme & Co Ltd v Victorian Casino & Gaming Authority (1995) 8 VAR 212; Department of Premier & Cabinet v Hulls [1999] 3 VR 331.
  152. Osland v Department of Justice (2008) 234 CLR 275; 82 ALJR 1288; [2008] HCA 37, 287-288 (CLR) (Gleeson CJ, Gummow, Heydon and Keifel JJ).
  153. Knight v Corrections Victoria [2010] VSC 338 [58].
  154. Department of Premier & Cabinet v Hulls [1999] VSCA 117, Coulson v Department of Premier and Cabinet [2018] VCAT 229.
  155. Director of Public Prosecutions v Smith [1991] 1 VR 63 per Kaye, Fullagar and Ormiston JJ, 75.
  156. Director of Public Prosecutions v Smith [1991] 1 VR 63 per Kaye, Fullagar and Ormiston JJ, 75. Pratt v Psychologists Registration Board of Victoria (unreported, AAT of Vic, Judge Wood p, 28 April 1998).
  157. Ambikapathy v Victorian Legal Aid [1999] VCAT 1361.
  158. AB v Department of Human Services [2001] VCAT 2020.
  159. Osland v Department of Justice [2010] HCA 24, [13].
  160. O’Sullivan v Farrer (1989) 168 CLR 210, 216.
  161. Director of Public Prosecutions v Smith [1991] 1 VR 63 per Kaye, Fullagar and Ormiston JJ, 75.
  162. Director of Public Prosecutions v Smith [1991] 1 VR 63 per Kaye, Fullagar and Ormiston JJ, 75. Pratt v Psychologists Registration Board of Victoria (unreported, AAT of Vic, Judge Wood p, 28 April 1998).
  163. Ambikapathy v Victorian Legal Aid [1999] VCAT 1361.
  164. AB v Department of Human Services [2001] VCAT 2020.
  165. Osland v Department of Justice [2010] HCA 24, [13].
  166. O’Sullivan v Farrer (1989) 168 CLR 210, 216.
  167. Department of Premier and Cabinet v Hulls [1999] VSCA 117, 24.
  168. Osland v Department of Justice (2010) 241 CLR 320; 84 ALJR 528; [2010] HCA 24.
  169. Department of Premier and Cabinet v Hulls [1999] VSCA 117, 31.
  170. Department of Premier and Cabinet v Hulls [1999] VSCA 117, 26, 35.
  171. Department of Premier and Cabinet v Hulls [1999] VSCA 117, 31; Trotter v Department of Justice [2003] VCAT 394 (27 March 2003) [15].
  172. Director of Public Prosecutions v Smith [1991] 1 VR 63.
  173. Director of Public Prosecutions v Smith [1991] 1 VR 63.
  174. Gill v Department of Industry, Technology and Resources (1985) 1 VAR 97.
  175. Osland v Department of Justice (2008) 234 CLR 275.
  176. Department of Premier and Cabinet v Hulls [1999] VSCA 117, 24.
  177. Osland v Department of Justice (2010) 241 CLR 320; 84 ALJR 528; [2010] HCA 24.
  178. Department of Premier and Cabinet v Hulls [1999] VSCA 117, 31.
  179. Department of Premier and Cabinet v Hulls [1999] VSCA 117, 26, 35.
  180. Department of Premier and Cabinet v Hulls [1999] VSCA 117, 31; Trotter v Department of Justice [2003] VCAT 394 (27 March 2003) [15].
  181. Director of Public Prosecutions v Smith [1991] 1 VR 63.
  182. Director of Public Prosecutions v Smith [1991] 1 VR 63.
  183. Gill v Department of Industry, Technology and Resources (1985) 1 VAR 97.
  184. Osland v Department of Justice (2008) 234 CLR 275.
  185. Mildenhall v Department of Education [1998] VCAT 465. Department of Premier and Cabinet v Hulls [1999] 3 VR 331.
  186. Chadwick v Department of Property and Services (1987) 1 VAR 444 455-456. Seaman v Victorian Legal Aid [2008] VCAT 589 at [32]. Re Coburg Brunswick Community Legal and Financial Counselling Centre and Department of Justice (1999) 15 VAR 208.
  187. The documents were also claimed to be exempt under section 33 (unreasonable disclosure of a person’s personal affairs).
  188. Mildenhall v Department of Education [1998] VCAT 465. Department of Premier and Cabinet v Hulls [1999] 3 VR 331.
  189. Chadwick v Department of Property and Services (1987) 1 VAR 444 455-456. Seaman v Victorian Legal Aid [2008] VCAT 589 at [32]. Re Coburg Brunswick Community Legal and Financial Counselling Centre and Department of Justice (1999) 15 VAR 208.
  190. The documents were also claimed to be exempt under section 33 (unreasonable disclosure of a person’s personal affairs).
  191. Victorian Civil and Administrative Tribunal Act 1998 (Vic), section 148(1).
  192. Administrative Law Act 1978 (Vic), section 3; Supreme Court of Victoria, How the Court Works, Trial Division (viewed on 4 August 2023) https://www.supremecourt.vic.gov.au/about-the-court/how-the-court-works.
  193. Victorian Civil and Administrative Tribunal Act 1998 (Vic), section 148(1).
  194. Administrative Law Act 1978 (Vic), section 3; Supreme Court of Victoria, How the Court Works, Trial Division (viewed on 4 August 2023) https://www.supremecourt.vic.gov.au/about-the-court/how-the-court-works.

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Last updated 18 January 2024

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